State v. Kays, 57483
| Decision Date | 09 April 1973 |
| Docket Number | No. 1,No. 57483,57483,1 |
| Citation | 492 S.W.2d 752 |
| Parties | STATE of Missouri, Respondent, v. James Arlan KAYS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
J. A. Appelquist Law Offices, J. A. Appelquist, Robert L. Bruer, Samuel C. Jones, Springfield, and Mt. Vernon, for appellant.
HIGGINS, Commissioner.
James Arlan Kays, charged with manslaughter by culpable negligence 'while in an intoxicated condition,' in operation of a motor vehicle, was convicted by a jury which assessed his punishment at imprisonment for one year in the county jail and a fine of $1,000. Sentence and judgment were rendered accordingly. §§ 559.070, 559.140, RSMo 1969, V.A.M.S. (Appeal taken prior to January 1, 1972.)
The following is quoted from the statement in appellant's brief:
'Three motor vehicles figured in the two collisions: a blue 1969 Chevrolet 2 1/2 ton truck, overall length 32 ft. owned by Bacon Tire Company, Republic, Mo., being operated by appellant. A 1966 Oldsmobile station wagon ambulance being operated by Mr. Alonzo Dean, 19. A green 1970 Ford Ranchero being operated by decedent Gamel. Paint samples taken from the Gamel Ford Ranchero indicated contact with the Bacon Chevrolet truck. The second collision was observed by * * * Charles Smith and involved the Bacon Truck and the ambulance and occurred within the intersection.
'The collisions occurred at the intersection of U.S. 65, and 'M' Highways, which intersection is located within the City Limits of Springfield, Missouri; U.S. 65 was a four-lane concrete North-South Highway with left-turn lanes, having dual southbound lanes and dual northbound lanes; 'M' Highway was a two-lane east and west blacktop highway intersecting U.S. 65. The intersection was a controlled intersection having a 'yield' sign for the left turning westbound traffic (appellant). For southbound traffic (decedent Gamel) there were two amber overhead caution blinker lights * * *; all blinker caution lights were operating. The posted speed limit was 55 mph. * * *
'Appellant Kays was operating his employer's 1969 Chevrolet truck which was partly loaded with tires returning from an Arkansas sales route having approached the intersection from the south and was enroute home to Republic, Missouri, westbound * * *. The decedent Gamel was en route to Ozark, Missouri, southbound on U.S. 65; Alonzo Dean was en route to Branson, Mo., and southbound on U.S. 65. * * *
'* * * The ambulance driver Dean was seriously injured and testified that he has no recollection of the collision. Mr. Gamel the driver of the Ranchero sustained fatal injuries. * * *
'Appellant Kays was not injured seriously, however complained of pain involving his head and leg. One witness related he seemed in shock. Appellant assisted and remained at the accident scene for over an hour without restraint, and at request he willingly accompanied an officer to the City Police Station for the purpose of taking the Breathalyzer Test.
'There was no complaint of prior erratic driving or excessive speed on the part of the appellant.
'* * * Two officers at the scene considered appellant intoxicated, Bob Dean and Marvin Woods. Two officers at the scene had no opinion, Gary Dishman and Harold Brandwein. Three witnesses that arrived at the scene within five minutes after collision testified that appellant was not intoxicated; Charles O. Smith, Willis Greek, and Truman Harmon. * * *
'Appellant took the Breathalyzer test at 11:17 p.m. at the Police Station. He was reported as being cooperative but complaining of his hip and leg. A Breathalyzer machine test reading indicated .21/100 which test reading was offered and admitted into evidence over objection. * * *
'Raymond Hargrave, Sergeant Springfield Police Department, testified that he held a type III permit to operate a Breathalyzer machine to administer breathalyzer tests; that he is not a qualified chemist and cannot analyze the chemical content of the reading; that he administered such a test to the appellant at 11:17 p.m., 4/15/71; that the results of the test was a reading of .21/100; that this was a reading of blood alcohol by volume; and that it was his opinion that the appellant was intoxicated. That appellant was not staggering. That on 9/14/71 witness made an experimental Breathalyzer test for attorney Bruer, which resulted in the same machine rendering an inaccurate test reading from the experiment, which witness attributed to a malfunction on his part regarding procedure.
'The jailer Stuart also gave a somewhat qualified observation that he believed that appellant was intoxicated.
'After the Breathalyzer test the appellant was handed two citations at the police station by Officer Dean, one being a charge of driving while intoxicated, and the second, drunk while on the public street. Appellant was released under bond to his employer, Mr. Bacon.
'Appellant's employer Mr. Bacon saw appellant at scene and was of the opinion appellant was not intoxicated and testified to appellant's trustworthiness and good character. * * *
'Richard A. Williams testified that at about 9:20 p.m. on the date of the accident he was on duty at the service station about 50 yards from the intersection when he heard a crash which caused him to look toward the intersection where he saw the Ranchero traveling through the air about five feet off the ground for a distance of approximately fifty feet. He testified that there have been 'quite a few' accidents at the intersection.
'Charles O. Smith, manufacturing engineer, Springfield, Mo., testified that he was a passenger in a car being driven by his son, which was southbound in the left or inside lane on Glenstone Avenue immediately prior to the accident; that at the second intersection north of the scene, an ambulance passed them between that intersection and the accident scene; that the Ranchero overtook the Smith car which was traveling at a rate of approximately fifty mph some distance north of the scene, blinked its lights twice as it approached from the rear; then passing the Smith car on the right pulling away at a speed of from fifty-five to sixty miles per hour; that at which time he commented to his son 'I wonder what's wrong with him'; that about one quarter mile from the scene he observed a 'shower of sparks' from the vicinity of inside lane near the scene although he did not see a collision between the Ranchero and the tire truck; that he arrived at the scene roughly half a minute later; that about five minutes after the accident he talked with the appellant; that he observed no indication of intoxication on the part of the appellant. That appellant was wearing a shirt and trousers and had an all-weather type of jacket * * *.
'Keith Smith, age 18, student, * * * was driving the family car accompanied by his father, Charles Smith, on Glenstone Avenue when he stopped at an intersection beside an ambulance; later, proceeding on Glenstone at a speed of forty-five to fifty miles per hour, the ambulance pulled away ahead of him; that the Ranchero overtook him at a speed of fifty-five miles per hour 'or a little faster,' passing the Smith vehicle on the right. He did not observe a collision between the Ranchero and the truck however did observe a shower of sparks at the intersection.
'Kenneth Pemberton testified that he is a traffic engineer with the State Highway Department; that there was a flashing amber signal facing traffic southbound on Highway 65 at the scene; that a 'yield' sign was positioned on the east side of the southbound lanes for northbound-left turning traffic at the intersection; that the scene is 'a high accident location,' there having been 28 accidents from March, 1969, to March, 1970, and 25 accidents from March, 1970, to March, 1971.
'Bob Dean testified that he is a member of the Traffic Department, Springfield Police Dept.; that the speed limit for southbound traffic at the scene was fifty-five miles per hour; that there were two blinking caution lights for southbound traffic at the scene; that he received a call to the scene at 9:33 P.M., arriving approximately five minutes later; that he spoke with the appellant at the scene; that the appellant stated to witness at the scene that 'I stopped but they didn't stop'; that it was his opinion that the appellant was intoxicated; and that appellant agreed to submit to a Breathalyzer Test; that after the test he gave the appellant a municipal court summons for being drunk on a public street and one for driving while intoxicated at the City Police Station at 10:45 P.M. or 11:00 P.M.; that he had no complaint regarding appellant's driving. That the clothing worn by appellant on the night of the collision included a shirt, trousers and jacket. * * *
'Marvin L. Woods testified that he was an officer of the Springfield Police Department on the date of the accident; that he was the first officer to arrive at the scene; that he conversed with the appellant at the scene and later drove him to the police station; that the appellant seemed to be dazed; that the appellant was complaining of a leg injury; and that he formed the opinion appellant was intoxicated, but was surprised at the high Breathalyzer reading.
'Truman Harmon, president of International Tool and Die, Springfield, Mo., testified that he lives about two hundred feet from the scene; that he heard 2 crashes; that he reached the scene in five minutes or less after the collisions; that when he arrived at the scene he wrenched open the door of the tire truck; that he inquired if the appellant was injured; that appellant indicated his head and leg injured; that appellant appeared to be stunned or dazed; that the appellant was observed by witness assisting at the scene trying to aid the ambulance driver; that he spent several minutes in the vicinity of the appellant; that he observed appellant limping; that appellant gave no...
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...177--178(3) (8th Cir. 1975), and every legitimate inference favorable to the verdict must be indulged by this court. State v. Kays, 492 S.W.2d 752, 758(1) (Mo.1973); State v. Burton, 357 S.W.2d 927, 930(2) (Mo.1962); State v. Brown, 291 S.W.2d 615, 620(9) (Mo.1956). No single fact or circum......
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